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From a New York trial court decision in People v. Govan (May 15):

[T]he defendant moves this court for an order allowing him to conceal his identity at trial. He argues that given the extraordinary amount of coverage the defendant, his actions in the courtroom, and the circumstances of the cases against him have received, he cannot receive a fair trial if the jury knows his true identity….

In February 2017, the defendant was arrested and charged with one count of Murder in the Second Degree in connection with the February 2005 death of Rashawn Brazell. Following Mr. Brazell's death an investigation was conducted by the police. To that end, reward flyers were posted in the neighborhood Mr. Brazell lived as well as in the neighborhoods that he frequented, appeals for information were made to the public through the media and the case was even broadcasted on a segment of "America's Most Wanted." The investigation did not result in the identity of an alleged perpetrator and thus the defendant's name was not mentioned in those media reports.

In November 2016, the defendant was indicted for an unrelated murder that occurred in 2004. As a result of new investigative leads regarding the death of Mr. Brazell, the defendant was subsequently indicted for the murder of Mr. Brazell in the instant indictment. Several media outlets reported on the defendant's indictments and followed the court proceedings, including a court appearance where the defendant refused to be fingerprinted, shouted that he was innocent, and had to be subdued by court personnel. A video of this particular proceeding as well as other proceedings were run by various media outlets.

In August 2018, the defendant was tried by a jury before this court for the unrelated 2004 murder. The defendant was found guilty of the charges of Murder in the Second Degree and Kidnapping in the First Degree. On September 7, 2018, the defendant was sentenced by this court to 25 years to life in prison on each count to run concurrently. The media was present throughout the course of the trial, as well as at the court appearances leading up to the trial. Members of different press outlets reported on the trial, the verdict and the sentencing. Notably, during the course of that trial, the defendant failed to raise any claim that the media would affect the defendant's ability to have a fair and impartial jury….

Here, the defense submits that given the "heinous allegations against [him]" and "the intense vilification of [him] on the internet," the only way to ensure that he receives a fair trial is to allow him to conceal his identity. Both the People and the defense acknowledge that allowing a defendant to proceed anonymously in a criminal trial is unprecedented relief….

In highly publicized cases, courts look to the voir dire process to determine whether a defendant has been denied his right to a fair and impartial trial. For example, in Murphy v Florida, the United States Supreme Court faced the issue of whether the defendant was denied a fair trial when members of the jury learned, through the media, certain facts about the crime for which the defendant was charged and that the defendant had a prior murder conviction. In holding that the defendant was not denied a fair trial, the Court held that the defendant failed to establish that the trial was prejudicial or that the jury selection process created an inference of actual prejudice. In reaching its decision, the Court found significant that during the voir dire process no juror indicated an inability to set aside any information heard or learned about the case and "none betrayed any belief in the relevance of [defendant's] past to the present case." … Here, [too,] the court, together with the parties, can conduct a thorough voir dire of the prospective jurors to ensure that the defendant's constitutional right to a fair trial by an impartial jury is not violated.

In addition to an extensive voir dire, jury instructions are an effective remedy in ensuring a defendant's right to a fair trial. In every case, whether deemed newsworthy or not, once the prospective jury panel is brought into the courtroom, it is customary for the trial court to not only introduce the parties and ask the potential jurors whether they know or have had any contact with the parties, but also to provide a brief synopsis of the allegations and to ask whether the potential jurors know or have read or heard anything about the case. Additionally, a trial court is required to give the jury certain admonitions in its preliminary instructions. Those admonitions must include:

that the jurors may not converse among themselves or with anyone else about any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to discharge, they many not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they must promptly report to the court any incident within their knowledge involving an attempt by any person improperly to influence any member of the jury

Here, the defendant speculates that notwithstanding the court's instructions, the temptation to research the defendant is "just too strong." He does not and, because jury selection has not commenced, cannot point to any example of a juror violating his or her oath or disregarding the court's instructions. Contrary to the defendant's baseless speculation, the Court of Appeals has held that jurors are presumed to "follow their oaths, answer the questions put to them truthfully and abide by the court's instructions." …

[Moreover, t]his is not a case where the trial takes place close in time to the alleged crime and media reports are fresh in the minds of the prospective jurors. Here, there has been no mention of recent or current media coverage of the defendant or the charges against him or any other indication showing that this case is still pervasive in the minds of Brooklyn's jury pool.

Moreover, Kings County is a large county which unfortunately sees several dozen homicides a year. So far this year, Kings County has seen 35 murder complaints. Last year, in 2018, there were 97 homicide cases recorded in Kings County. And in 2005, the year Mr. Brazell was murdered, it appears that there were over 200 homicide cases in Kings County. Many of these murder cases were covered by the media. The situation here is vastly different from that of a high profile case in a small town or a smaller county where the case is likely to be the center of public attention.

The article relied upon by the defendant cites to two instances where a party was allowed to proceed anonymously at trial. Both, however, were in the context of a civil matter, and not a criminal case…..

Assuming arguendo that this court were to grant the defendant's motion to conceal his identity, it would still not remedy the perceived harms asserted by the defendant. The defendant submits that entering his name in an internet search engine results in an immediate display of tremendous unfair and prejudicial information about him. However, as pointed out by the People, an internet search of the decedent's name or of the allegations in the case, such as "body parts in subway," would generate the same results as if one had conducted a search using the defendant's name. Hence, concealing the defendant's name would not prevent a juror who is willing to violate his or her oath and disregard the court's instructions from finding media coverage of the defendant and the case.

Additionally, this court presided over a pretrial Huntley hearing in which a statement attributed to the defendant was litigated. The court denied the defendant's motion to suppress the statement and ruled that the statement is admissible in the People's case-in-chief. In his statement, the defendant told police that he was out of state when Mr. Brazell was killed and did not return to New York City until several weeks after. However, when confronted with a signature bearing defendant's name in the guestbook from the decedent's funeral, the defendant admitted that the signature was his and that he had attended the decedent's funeral….

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In In re DMCA Subpoena to Reddit, Inc., 2019 WL 2222041 (N.D. Cal. May 17), the Watch Tower Bible & Tract Society of Pennsylvania—the Jehovah's Witnesses organization—claimed that a commenter on a Reddit forum for ex-Jehovah's-Witnesses infringed Watch Tower's copyrights in a couple of items. They sought a subpoena to discover the identity of the commenter (who had posted under the pseudonym Darkspilver); Darkspilver sought to block the subpoena, arguing that the First Amendment protected his anonymity, but Watch Tower argued that he lacked First Amendment rights because had had admitted that he lived from outside the U.S., and was presumably posting from outside the U.S. But the court rejected that argument:

For support, Watch Tower cites two cases evaluating different constitutional provisions – the Fourth and the Fifth Amendments. See Johnson v. Eistrager, 339 U.S. 763 (1950) (Fifth Amendment); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).

In Johnson, the Supreme Court held that military prisoners captured abroad were not entitled to protection under the Fifth Amendment because they were: (a) enemy aliens; (b) had never been or resided in the United States; (c) were captured outside of the United States and held in military custody as war prisoners; and (d) were tried and convicted by a Military Commission sitting outside the United States for war crimes committed abroad…. In United States v. Verdugo-Urquidez, … the Court rejected the exterritorial application of the Fourth Amendment to a search conducted in Mexico of a Mexican resident and citizen's homes.

In contrast, here, the constitutional right at stake is a different constitutional amendment – the First Amendment – and the asserted violation does not concern merely extraterritorial conduct. The subpoena here was issued by a Court in the United States, on behalf of a United States company (Watch Tower) and was directed against another United States company (Reddit).

Moreover, the First Amendment protects the audience as well as the speaker…. Although the exact percentage of subscribers to Reddit forum who live in United States is unknown, the only data before the Court suggests that a substantial number are United States residents. Based on the involvement of the United States Court's procedures by and against United States companies and the audience of United States residents, as well as the broad nature of the First Amendment's protections, the Court finds that the First Amendment is applicable here.

The court went on to conclude that the proper First Amendment solution here was to allow disclosure of Darkspilver's identity only to plaintiff's lawyers, who would be obligated not to disclose to their client. Though Darkspilver might have a strong fair use defense,

Nevertheless, Watch Tower has not yet had a chance to conduct discovery on its copyright claim or to engage an expert to conduct a market analysis. Perhaps Watch Tower, if provided the opportunity, could demonstrate that fewer people visited its website after Darkspilver's posting. The Court is hesitant to deprive Watch Tower of the opportunity to develop its claim and supporting evidence before it has even filed suit.

In balancing the harms, while considering the fair use defense, the Court finds that they tip sharply in Darkspilver's favor. However, the Court notes that Darkspilver's concerns stem largely out of his fear that those in his congregation will discover his identity and shun him. If Reddit reveals Darkspilver's identity to Watch Tower's counsel, under an "attorney's eyes only" restriction, then any harm to Darkspilver would be alleviated. This restriction would enable Watch Tower to pursue its copyright claim without causing harm to Darkspilver.

Therefore, the Court hereby grants in part and denies in part Darkspilver's motion to quash. Reddit shall respond to the subpoena and provide the requested information to Watch Tower's counsel. However, only attorneys of record in this matter may obtain information about Darkspilver's identity. Watch Tower's attorneys of record shall not to disclose Darkspilver's identity to anyone else without approval in a Court Order from this Court. For example, Watch Tower's attorneys of record may not disclose Darkspilver's identity even to its client, staff, or expert witnesses without approval in a Court Order from this Court.

[Footnote: Watch Tower claimed at the hearing that it plans to disclose Darkspilver's identity to its forensic experts so that Watch Tower can determine how Darkspilver obtained confidential information in the chart and prevent further disclosure of that confidential information. This purpose is not related at all to a copyright issue, and for that reason, the Court rejects that form of disclosure.]

If Watch Tower elects to file a lawsuit against Darkspilver, the Court directs Watch Tower to seek to file the suit under his pseudonym and to keep his actual identity under seal, for attorney's eyes only. Moreover, Watch Tower is admonished that any violation of this Order will be sanctioned and that this Court retains jurisdiction over any potential violation of this Order.

EFF (Alex Moss) has more on this, arguing that the order should have entirely rejected the subpoena:

While the court agreed that "Watch Tower has not demonstrated any actual harm or likelihood of future harm"—the fourth fair use factor—it gave undue credence [to] Watch Tower's claim that "the harm it suffered from people infringing on its copyrights was directing others away from its website." … Based on the court's approach, the [First Amendment] standard offers weak protections for fair users. Even a far-fetched theory regarding a particular fair use factor, like the one posited here, might be enough to justify disclosure even if the rest of the fair use analysis clearly suggests the use was lawful.

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On Friday night, Federal District Judge Haywood Gilliam ruled against the administration in what is likely to be the first of many court decisions on the legality of President Trump's plans to reallocate federal defense and and drug interdiction funds to build his border wall. The court concluded that none of the the federal laws that the administration wants to use to reallocate funds for wall construction in California actually permits it to spend more money on the wall than Congress specifically authorized for that purpose. Judge Gilliam also emphasized that the administration's attempts to circumvent Congress' power of the purse threaten to undermine our constitutional system of separation of powers.

In order to build parts of Trump's planned border wall, the administration wants to reallocate funds under 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies, and 10 USC Section 2808, which applies  during a "national emergency" that "requires the use of the armed forces"  an allows the president to reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." In order to make use of Section 2808, Trump declared a "national emergency" under the National Emergencies Act of 1976.

Since the funds Congress specifically allocated to fund Section 284 during the current fiscal year are nearly exhausted, the Department of Defense wants to tap some $2.5 billion in additional funds by using Section 8005 of the most recent Department of Defense Appropriations Act. As Judge Gilliam explains, Section 8005 "authorizes the Secretary of Defense to transfer up to $4 billion 'of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions … Section 8005 further provides that such authority to transfer may only be used (1) for higher priority items than those for which originally appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item for which funds are requested has been denied by the Congress." The federal government also plans to utilize some $3.6 billion under Section 2808. This combined total is far more than the $1.375 billion that Congress authorized in new border barrier spending in the deal that ended the government shutdown earlier this year.

For reasons Judge Gilliam explains, neither Section 2808 nor the combination of Section 284 and Section 8005 actually authorize the president to spend money on border barriers. Moreover, the administration's efforts to tap these funds would seriously undermine the separation of powers of the courts allow them to succeed.

In his opinion, Judge Gilliam concludes that the administration's attempt to use Section 8005 runs afoul of two of that provisions' requirements: that the expenditure in question cannot be for a purpose "denied by Congress", and that it must be for  "unforeseen military requirements."

As Judge Gilliam points out, "the Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018." Trump has been lobbying Congress for extensive new border wall funding for a long time now. Their refusal to satisfy his demands does not make the wall an "unforeseen" military need. He notes that if the administration prevails on this issue, virtually any Section 284 spending could qualify as as an "unforeseen" need, based on the theory that the need for  the spending was not known until the administration demanded it.

The administration's position on the "denied by Congress" issue is perhaps even more troubling. Judge Gilliam's ruling explains that the administration's demands for new border wall spending beyond the $1.375 billion included in the recent budget deal, were repeatedly rejected by Congress. This surely qualifies as a "denial" by Congress. The administration's attempts to get around this problem pose a serious threat to the separation of powers:

[T]he upshot of Defendants' argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate only $1.375 billion for that purpose; (2) Congress's total fiscal year 2019 appropriation available under Section 284 for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States" was $517 million, much of which already has been spent; and (3) Defendants have acknowledged that the Administration considered reprogramming funds for border barrier construction even before the President signed into law Congress's $1.375 billion appropriation….

Put differently, according to Defendants, Section 8005 authorizes the Acting Secretary of Defense to essentially triple—or quintuple, when considering the recent additional $1.5 billion reprogramming—the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming….

[R]eading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an "unbounded authorization for Defendants to rewrite the federal budget…"

Judge Gilliam goes on to emphasize that:

The Court has serious concerns with Defendants' theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute…. But it is not Congress's burden to prohibit the Executive from spending the Nation's funds: it is the Executive's burden to show that its desired use of those funds was "affirmatively approved by Congress…

To have this any other way would deprive Congress of its absolute control over the power of the purse, "one of the most important authorities allocated to Congress in the Constitution's 'necessary partition of power among the several departments.'"… (quoting The Federalist No. 51, at 320 (James Madison)..).

On Section 2808, Judge Gilliam concludes that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." For reasons he explains, such border barriers do not qualify as a "military construction projects" as that term is defined in Section 2801 (which provides relevant definitions for 2808).

I pointed out some additional reasons why the administration's reliance on Section 2808 is flawed here. Among other things, immigration law enforcement does not qualify as an "emergency" that "requires the use of the armed forces." Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.

Because the administration has not yet decided when and where it intends to use the Section 2808 funds, Judge Gilliam only issued a preliminary injunction against the use of Section 8005/Section 284 funds.

The bottom line in this case is that the president does not have the power to spend money for purposes not authorized by Congress, and he cannot circumvent Congress' power of the purse through creative manipulation of statues. As Judge Gilliam puts it, "Congress's 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one."

This is not the first time the Trump Administration infringed on Congress' power of the purse. It has repeatedly done much the same thing in its efforts to withhold federal funds from "sanctuary cities," a strategy that has led to a long series of well-deserved defeats in court.

Judge Gilliam's decision only deals with the plaintiffs' motion for a preliminary injunction. But it is obvious which way he is likely to rule once the case reaches a final decision on the merits. In addressing the preliminary injunction question, he concluded that the plaintiffs are likely to prevail on the merits on both the Section 2808 and Section 8005/Section 284 issues.

Yesterday's ruling is just the beginning of what is likely to be a prolonged legal battle over Trump's efforts to reallocate funds to "build the wall." This case, filed by the ACLU on behalf of the Sierra Club and others groups, is just one of many lawsuits against the president's plan. It is the first to result in a judicial decision. There will likely be many more before this

Judge Gilliam does not address a number of issues that are likely to be dealt with in other cases, or perhaps even in this one, after the federal government files an appeal. These include whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976 (whose invocation was necessary to trigger Section 2808), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. Yesterday's ruling did not need to address these issues because Judge Gilliam concluded that the use of Section 2808 was illegal for other reasons, and because the administration has not yet tried to use the new funds to condemn property in the areas in question. Similarly, the ruling does not consider the legality of the administration's plan use federal asset forfeiture funds to build the wall, relying on 31 USC 9705. The Administration intends to use Section 9705 to fund wall construction in Texas, but in areas not covered by the lawsuit before Judge Gilliam.

As Winston Churchill might have put it, this ruling is not the end of the legal struggle over Trump's border wall; it barely even qualifies as the end of the beginning. But Judge Gilliam's decision is still a notable victory for opponents of the wall. It effectively highlights some key flaws in the administration's position.

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Thanks to commenter James Pollock for highlighting this, and adding: "To be fair to our robed brethren, NOBODY is as funny as they think they are"—though, as the Utah Supreme Court opinion suggests, judges are likelier than the rest of us to draw laughter even for their less funny jokes.

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The charges also involved some nonpolitical bad conduct in a dispute with court personnel (omitted from the excerpts below), and also out-of-court public advocacy for and against political candidates, which are also forbidden by Utah judicial ethics rules. Judge Kwan challenged most of the out-of-court commentary charges (but not the charges based on in-court speech) on First Amendment grounds; but the court concluded that Judge Kwan's objections hadn't been raised in time (see below), and that in any event the suspension would be warranted even if the charges were limited to the ones that Judge Kwan acknowledged were constitutionally permissible.

Here's an excerpt, from In re Kwan (Utah May 22):

This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan [of the Taylorsville justice court] acknowledges that he violated the Utah Code of Judicial Conduct when he made seemingly shirty and politically charged comments to a defendant in his courtroom…. Moreover, in response to questions at oral argument, Judge Kwan conceded that an online post critical of then-presidential candidate Donald Trump also violated the code of conduct. But Judge Kwan argues that the six-month suspension the Judicial Conduct Commission (JCC) recommends is inappropriate. He claims that sanction rests, in part, on an unlawful attempt to regulate his constitutionally protected speech, and he asserts that a less severe penalty is all that is warranted….

In January 2017, while presiding over a hearing, Judge Kwan launched into an exchange with a defendant that appeared to demean the defendant and included political commentary regarding President Trump's immigration and tax policies:

"Judge: So, what happened with your fine payments?

"Defendant: So, I, just, live paycheck to paycheck ….

"Judge: Ok. So, when you set up the pay plan you were hoping you would have the money and it didn't pan out that way?

"Defendant: And I did not call, but I plan on when I get my taxes to just pay off all my court fines, because I cannot end up in jail again for not complying.

"Judge: You do realize that we have a new president, and you think we are getting any money back?

"Defendant: I hope.

"Judge: You hope?

"Defendant: I pray and I cross my fingers.

"Judge: Ok. Prayer might be the answer. 'Cause, he just signed an order to start building the wall and he has no money to do that, and so if you think you are going to get taxes back this year, uh-yeah, maybe, maybe not. But don't worry[,] there is a tax cut for the wealthy so if you make over $ 500,000 you're getting a tax cut. You're right[ ] there[,] right? Pretty close? All[ ]right, so do you have a plan? Other than just get the tax cut and pay it off?"

[Footnote: Judge Kwan contends that this was intended to be funny, not rude. It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge's joke, there is a decent chance that the laughter was dictated by the courtroom's power dynamic and not by a genuine belief that the joke was funny.] …

[The Judicial Conduct Commission] alleged that Judge Kwan's in-court political statements violated rules 1.2, 2.8, and 4.1. See Utah Code J. Conduct R. 1.2 (2017) ("A judge … shall not undermine … public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety."); id. 2.8(B) ("A judge shall be patient, dignified, and courteous to litigants, … court staff, … and others with whom the judge deals in an official capacity …."); id. 4.1(A)(10) ("Except as permitted in this Canon, a judge … shall not … make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court ….")…..

[The court concluded that the in-court statements violated these rules, and went on to say:] [E]ven if we only include the statement Judge Kwan concedes can be constitutionally regulated, the record before us merits a six-month suspension without pay.

Suspension without pay is a particularly significant penalty that carries substantial consequences. But given the record before us, it is the appropriate penalty. And six months is an appropriate term. A lesser period would fail to adequately address the degree to which Judge Kwan has varied from our judicial code, the repeat nature of Judge Kwan's conduct, his disregard of the specific guidance and former discipline he has received, and the importance of the principles his conduct has trampled….

[E]very time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole. Here, we readily conclude that Judge Kwan has been spending our goodwill. As Judge Kwan admits, his in-court political comment regarding President Donald Trump violated Utah Code of Judicial Conduct Rules 1.2 and 2.8. This comment continues a pattern of behavior that led to our first public reprimand of Judge Kwan, following his in-court reference to sexual conduct and a former president of the United States. And it demonstrates an ongoing failure to exercise appropriate judgment and restraint when making statements during judicial proceedings….

Finally, Judge Kwan concedes that he posted online commentary in violation of the Utah Code of Judicial Conduct. As Judge Kwan acknowledged before this court, at least one of his online comments criticized then-presidential candidate Donald Trump in violation of rule 4.1(A)(3). See id. 4.1(A)(3) ("Except as permitted in this Canon, a judge … shall not … publicly endorse or oppose a candidate for any public office ….").

"An independent, fair and impartial judiciary is indispensable to our system of justice." Id. Preamble. By criticizing a political candidate for office, Judge Kwan engaged in conduct that would appear to a reasonable person to undermine his independence or impartiality, in violation of rules 1.2 and 3.1. See id. 1.2; id. 3.1(C) ("[W]hen engaging in extrajudicial activities, a judge shall not … participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality …."). While Judge Kwan's comments addressed a candidate for national political office, and Judge Kwan may not decide national-scale issues as a justice court judge, those issues may still bear, or appear to bear, in some respects on questions that arise in his courtroom. Or cause those who disagree with Judge Kwan's politics to believe that they will not receive a fair shake when they appear before him.

But the problem here is not primarily a concern that Judge Kwan has voiced his views on a range of political issues via his criticisms of Donald Trump. Far more importantly, Judge Kwan has implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office. Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election….

The charges against Judge Kwan also involved political advocacy outside court, which is also forbidden by Utah judicial conduct rules; Judge Kwan argued that these prohibitions violated the First Amendment, but the court concluded that Judge Kwan hadn't raised those arguments at the right time:

During 2016, Judge Kwan repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump. [Footnote: Judge Kwan's Facebook account was "private," but Judge Kwan does not assert that this exempts those comments from regulation under the Utah Code of Judicial Conduct. In addition, Judge Kwan has not elaborated on the "limited number of friends" allegedly given access to his Facebook account or suggested that those individuals would not share his comments or postings more widely. Instead, Judge Kwan has acknowledged that "his posts [might] be reposted by his friends."] Judge Kwan continued to post comments and articles regarding Donald Trump following the presidential election. Over that same period, between mid-2016 and early 2017, Judge Kwan posted comments or shared articles on several other topics including immigration, gun violence, and voter participation.

On November 8, 2016, for example, Judge Kwan wrote a lengthy post on voter participation, which opened, "Dear Generation X and Millennial Voters, So many people have tried to convince you of the importance of your participation in this year's election…. Let me join in the effort … by giving you the cold, hard truth: You have to vote to stop your elders from screwing up your future!" Judge Kwan continued, "What kind of future do you want? Want help with your student loan debt? Want affordable tuition? Affordable health insurance? … Grab a friend and Go Vote."

With respect to Donald Trump, Judge Kwan's postings were laden with blunt, and sometimes indelicate, criticism. In July 2016, for example, Judge Kwan posted an article entitled "Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice." Above the article's headline, Judge Kwan added, "Checkmate."

On September 26, 2016, the night of the first presidential debate between candidates Donald Trump and Hillary Clinton, Judge Kwan wrote:

"Contradictory: person who got rich by not paying people for their work but complains about NATO not paying their fair share.

"Food for thought: If a person tries to show their ties to a community by talking about their investments and properties and not about the people of the community, it speaks to that person's priorities.

"Quick question: Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say … about your business practices?

"Wish she said: 'Donald, I'm used to having a man interrupt and dismiss me when I speak because egotistical men hav[e] been trying to do that to me for my entire career.'"

On November 11, 2016, three days after the presidential election, Judge Kwan remarked, "Think I'll go to the shelter to adopt a cat before the President-Elect grabs them all …."

On January 20, 2017, the day President Trump was inaugurated, Judge Kwan commented, "Welcome to governing. Will you dig your heels in and spend the next four years undermining our country's reputation and standing in the world? … Will you continue to demonstrate your inability to govern and political incompetence?"

On February 13, 2017, Judge Kwan posted, "Welcome to the beginning of the fascist takeover." He continued, "[W]e need to … be diligent in questioning Congressional Republicans if they are going to be the American Reichstag and refuse to stand up for the Constitution, refuse to uphold their oath of office and enable the tyrants to consolidate their power."

Again, these are illustrative examples—not a comprehensive recitation—of the comments and articles shared online by Judge Kwan that referenced Donald Trump and a range of other topics between mid-2016 and early 2017….

[The Judicial Conduct Commission] alleged that Judge Kwan's in-court political statements violated rules 1.2 [quoted above], 2.8 [quoted above], and 4.1 … ("Except as permitted in this Canon, a judge … shall not … make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court ….")….

And based on the online postings, the JCC alleged that Judge Kwan violated rules 1.2, 3.1, 4.1(A)(3), and 4.1(A)(10). See id. 1.2; id. 3.1 ("[W]hen engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judge's judicial duties; (B) participate in activities that will lead to unreasonably frequent disqualification of the judge; [or] (C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality …."); id. 4.1(A)(3) ("Except as permitted in this Canon, a judge … shall not … publicly endorse or oppose a candidate for any public office …."); id. 4.1(A)(10).

As noted above, Judge Kwan acknowledged engaging in the conduct, and he also conceded that some of that conduct violated the Utah Code of Judicial Conduct. He characterized his in-court political statements as an inappropriate attempt at humor, and he admitted that the statements violated rules 1.2 and 2.8….

[Paragraph moved:] Judge Kwan has repeatedly stated that judges may, in his view, constitutionally be prohibited from endorsing or opposing candidates for office. Judge Kwan initially coupled his concession with an assertion that to run afoul of rule 4.1(A)(3), a judge's statement must expressly name a political candidate. During the hearing before this court, however, Judge Kwan addressed a September 26, 2016 posting, in which he implicitly referenced then-presidential candidate Donald Trump: "Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say … about your business practices?" In response to questions from the bench, Judge Kwan characterized the posting as "an inappropriate comment on a political candidate," and stated that rule 4.1 could constitutionally be applied to restrict that speech….

But with respect to his [other] online political commentary, Judge Kwan raised a constitutional challenge. He asserted that, under the First Amendment, his "comments on social media about elected officials' policies and social and political issues" were "constitutionally protected speech." [Details omitted.-EV] … [But in our past cases, we have required] evidence of a constitutional objection contemporaneous with the alleged infraction. E.g., In re Christensen, 2013 UT 30, ¶ 10, 304 P.3d 835 ("Before disciplinary proceedings commenced, Judge Christensen did not allege formally or informally that the [law] was unconstitutional. Nor do the record or the briefs suggest that Judge Christensen's violation of the statute was causally related to or even temporally correlated with his belief that the law was unconstitutional."); In re Anderson, 2004 UT 7, ¶ 65, 82 P.3d 1134 ("[B]y failing to record his constitutional objection … in the cases before him, or in an action for declaratory judgment, Judge Anderson has failed to register his objection in any way contemporaneous with his refusal to observe the statutory requirements. He has therefore given us no reason to believe that constitutional principle motivated that refusal.")….

[W]e have required judges who fail to abide by laws or rules to put the public on notice that their violation is based on a principled contention that the law or rule is, itself, unlawful. Without such notice, a judge may appear to violate laws or rules at will, in disregard of the legal system they are charged with administering. And when judges appear to consider themselves above the law, public confidence in the fairness and impartiality of our judicial and legal systems diminishes.

Judge Kwan has not pointed to any behavior putting the public on notice that his violation of the code of conduct was, in fact, a principled one. In particular, Judge Kwan does not assert that, at the time he posted his online comments, he raised a constitutional challenge to any provision of the Utah Code of Judicial Conduct that might regulate his speech, such as rules 1.2, 3.1, or 4.1

Judge Kwan's online postings thus give the appearance that Judge Kwan considered himself unfettered by the Utah Code of Judicial Conduct. That Judge Kwan engaged in this conduct in the face of, and contrary to, the guidance he sought [in past advisory ethics opinions that he had received], only amplifies the perception that Judge Kwan acted as if the rules did not apply to him. Because Judge Kwan did not challenge the application of the rules to him at the time he violated them, he is barred from asserting, in this proceeding, that we cannot constitutionally sanction judicial speech on social or political issues unless the speech expressly criticizes or praises a political candidate for office.

Still, we are mindful of the weighty implications of foreclosing arguments regarding a rule's unconstitutionality in a proceeding in which the rule is being applied. And we can foresee potential quandaries that may arise in requiring judges to adhere to such a rule. A violation of the code of conduct might be the product of an off-the-cuff remark or a spontaneous interaction, unaccompanied by the foresight to quickly exclaim constitutional principles, in case a disciplinary proceeding might follow. And judges acting with greater intention and foresight may be forced to put a public spotlight on private activities or interests, when engaging in conduct that appears to be constitutionally protected, on the off-chance the JCC might consider it sanctionable. [Foontote: We also note the unconventional nature of this rule, which we articulated and applied without citation to precedent in In re Christensen and In re Anderson. See In re Christensen, 2013 UT 30, ¶¶ 8–10, 304 P.3d 835; In re Anderson, 2004 UT 7, ¶¶ 63–67, 82 P.3d 1134. A review of other jurisdictions' decisions suggests that, as a matter of course, constitutional challenges are considered in judicial disciplinary proceedings without any similar requirement.]

But this is our law, and Judge Kwan has not asked that In re Christensen and In re Anderson be overturned. We therefore leave for another day whether, applying the principles set forth in Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553, our contemporaneous constitutional objection requirement should be reconsidered. And we do not reach the merits of Judge Kwan's constitutional arguments.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

IJ's own Diana Simpson was on NPR discussing Chicago's vehicle impound system, which imposes tens of millions of dollars in fines and fees annually and is insanely unfair to residents, afflicting the innocent as well as the guilty and the poor most of all. Click here to listen.

  • Fan of the Libertarian Party dies, leaves the party a surprise gift of $235k. Uh oh! Campaign finance law imposes limits on contributions to political parties. Libertarian Party: The limits exist to prevent quid pro quo corruption, and we can't repay a favor to a dead guy. D.C. Circuit (en banc): Yeah, but it's conceivable that a donor might strike a corrupt bargain with a campaign before they die, so the limit is fine. Dissent: This is the First Amendment; you need real evidence, not just speculation.
  • Federal law authorizes retired law enforcement officers to carry concealed firearms all over the country (subject to some conditions), overriding state and local laws to the contrary. D.C.: Retired corrections officers don't count, as they didn't have the power to arrest anyone. D.C. Circuit: They do and did.
  • Friends, please enjoy this vocab quiz from Judge Selya of the First Circuit: Perfervid, salmagundi, immurement, plaint, ossature, praxis, and tenebrous. Plus, a scrutable idiom: "nose-on-the-face plain."
  • Lawful permanent resident, a hairdresser from the Bronx, is jailed for several months awaiting deportation hearing, during which time she experiences severe mental health breakdown. She prevails at her hearing; Orange County, N.Y. officials release her in sub-zero temperatures without her medication or any way of obtaining more (or even knowing what medication she needed). Second Circuit: She's plausibly alleged officials failed to provide adequate discharge planning in violation of the Fourteenth Amendment. The suit should not have been dismissed.
  • The Trump Administration failed to adequately explain its reasons for rescinding DACA, an Obama administration program delaying deportation for immigrants who came to the U.S. illegally as children. Which violated the Administrative Procedure Act. So says the Fourth Circuit (over a dissent).
  • Man buys gift for friends on Amazon—a headlamp. It's defective; it burns down his friends' Montgomery County, Md. home. Must Amazon pay the friends' insurer? The Fourth Circuit says no; under state law, Amazon is not a "seller" as it never took title to the lamp. Concurrence: Which is about the only thing Amazon didn't do; it warehoused the lamp, took payment for it, and assumed the risk of credit card fraud, among things. Maryland legislators and judges might want to look into this.
  • Litigation financing, heartbreak, and recusal collide in this Texas-sized debacle. A litigation financing company has a stake in 21 lawsuits being litigated by a Mexican law firm. But one of the law firm's owners is embroiled in a divorce in Texas, and his interest in the law firm is part of the marital estate. So the litigation financing company intervenes in the divorce proceeding to protect its investment in the law firm and to collect debts owing to the firm. But the lawyer the company hires to collect the soon-to-be-divorced lawyer's debts turns out to also be law partners with the divorce court judge. Which—when uncovered—explodes the litigation financing company's efforts to recover its investment and leaves it having wasted $2 mil in attorney fees. Yikes! But that's just the beginning. The litigation financing company then sues the lawyer for malpractice. No, not the lawyer getting the divorce. The other one; the one it originally hired to recover its investment but who had the business relationship with the judge. And in response to the company's suit, the lawyer commits what the Fifth Circuit later describes as a "litany of litigatory misbehavior." Which leads to the district court's striking the lawyers' pleadings, entering a default judgment in favor of the litigation financing company, and awarding nearly $3 mil in damages. Fifth Circuit: The default judgment shall stand, but the district court needs to recalculate the damages award.
  • Man allegedly violates his probation; his probation officer gets a Houston County, Tenn. judicial commissioner to revoke it. He goes to jail for several months. But wait! A state court judge rules that Tennessee judicial commissioners, who can issue search and arrest warrants, do not have the authority to issue probation revocation warrants. Can the man sue the commissioner? The Sixth Circuit says no. Judicial immunity.
  • Since 2014, Bel-Nor, Mo. resident has displayed a "Black Lives Matter" sign in his front yard; since 2016, he has also displayed two (now-outdated) political signs. City: Under our ordinance, you're allowed one "sign" and one "flag"—which we've defined to mean a piece of fabric that is a "symbol of a government or institution"—and none of your signs are a flag. Eighth Circuit: The city's different treatment of "signs" and "flags" is content based. A banner with an Army logo would qualify as a "flag," but one with a Cardinals logo wouldn't. That makes the ordinance likely invalid under the First Amendment, so the resident gets a preliminary injunction while the case proceeds.
  • Man is sent to prison for 145 years on strength of his eighth grade stepdaughter's testimony that he abused her. She recants, but a state court determines the recantation was not credible, and the Colorado Supreme Court declines to order a new trial. Tenth Circuit: His claim that the trial court relied on false testimony (in violation of due process) doesn't work since the allegedly false testimony was from a private citizen and he can't show the gov't knew it was false.
  • Gorilla Gym infringes Gorilla Playsets' trademark, as both use a similar size and type of gorilla for their children's playground equipment, says the Eleventh Circuit. But the district court was monkeying around when it ordered the infringer to pay its profits for continuing to use the trademark after being sued. After all, it was, at the time, a legal trademark that no judge had ruled against.
  • And in en banc news, the Ninth Circuit has asked the Montana Supreme Court for its view on whether dinosaur fossils are owned by the owner of the land on which they're found or instead by them that own the rights to mine minerals under that land.
  • And in further en banc news, the Seventh Circuit will not reconsider its decision applying the "doctrine of consular nonreviewability." Come for the initial decision (a U.S. citizen cannot challenge a consular official's decision to deny his Yemeni wife and children a visa because it isn't clear that the ability to live in America with one's spouse is a protected constitutional right (and, even if it were, the decision was legit)), stay for the fiery back and forth between the dissental and concurrence regarding the denial of rehearing. (Judicial abdication! Rights of citizenship! Bad faith of immigration officials!)

It was a good week for the First Amendment. In North Dakota, a federal judge issued a temporary restraining order barring the city of Mandan from imposing thousands of dollars in fines on the owners of the Lonesome Dove saloon (for now). The owners' crime? Commissioning a painted mural on the side of their building that features a sunset over a landscape with mountains and cowboys and the words "Lonesome Dove," which the city deemed an unlawful commercial message. Click here to learn more. In Savannah, Ga. a federal judge ruled that the city's tour guide licensing law, which, among other things, had imposed a 100-question test filled with picayune trivia on would-be guides, violated the First Amendment. "Today's ruling vindicates a simple principle," says IJ Senior Attorney Robert McNamara. "In this country, we rely on people to decide whom they want to listen to. We do not rely on government to decide who will get to speak." Click here for more.

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Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the "judicial Power of the United States" shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.  But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name "judicial review" is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court's reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court's opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin's list is wrong.

You'll really know the rest of the story if you read Repugnant Laws. You'll get another taste in a future blog post.

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I'm thrilled to announce that my new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, is now available for purchase. From the jacket copy:

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

This project took a long time to bring to fruition, in no small part because I realized our conventional understandings of the history of judicial review are wrong. The book makes use of a new comprehensive catalog of all the cases in which the U.S. Supreme Court substantively reviewed the constitutional validity of an application of a federal statutory provision from the founding of the Court through the retirement of Justice Anthony Kennedy. The Court has been more active in enforcing limits on congressional power, as well as in upholding and extending congressional power, than we have generally recognized. Whose ox have been gored in the process? Dig in to see.

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The revised indictment, just handed down today, contains three sets of charges.

1. Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don't have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords (even just to hide the sources' own tracks), just as very few reporters provide sources with lock picks or instructions on breaking into safes.

2. Most of the other counts focus on Assange's urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government's theory is that Assange himself commited a crime by essentially soliciting Manning's crime.

This is a plausible theory: Usually, soliciting a specific crime—urging a particular person to kill another particular person, or to steal certain kinds of material, or to illegally leak certain kinds of information—is itself criminal, and unprotected by the First Amendment. "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," and that applies to solicitation of such illegal transactions as well (U.S. v. Williams (2008)).

"To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality"; abstract advocacy is much more constitutionally protected under the Brandenburg v. Ohio (1969) test, which is limited to intentional advocacy or likely and imminent lawless conduct. But specifically asking a specific person for specific documents is not protected by the First Amendment, and parts of the indictment suggest that this is what Assange was doing:

After confirming that ASSANGE thoughtthey had value, on March 8, 2010, Manning told ASSANGE that she was "throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now." ASSANGE responded, "ok, great!" When Manning brought up the "osc," meaning the CIA Open Source Center, ASSANGE replied, "that's something we want to mine entirely, btw," which was consistent with WikiLeaks's list of "Most Wanted Leaks," described in paragraphs 4-5, that solicited "the complete CIA Open Source Center analytical database," an unclassified (but nonpublic) database.

To be sure, some of the charged solicitations were aimed at the public as a whole, and not just at Manning, e.g.:

To further encourage the disclosure of protected information, including classified information, the WikiLeaks website posted a detailed list of "The Most Wanted Leaks of 2009," organized by country, and stated that documents or materials nominated to the list must "[b]e likely to have political, diplomatic, ethical or historical impact on release… and be plausibly obtainable to a well-motivated insider or outsider."

As of November 2009, WikiLeaks's "Most Wanted Leaks" for the United States included the following:

a. "Bulk Databases," including an encyclopedia used by the United States intelligence community, called "Intellipedia;" the unclassified, but non-public, CIA Open Source Center database; and

b. "Military and Intelligence" documents, including documents that the list described as classified up to the SECRET level, for example, "Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);" operating and interrogation procedures at Guantanamo Bay, Cuba; documents relating to Guantanamo detainees; CIA detainee interrogation videos; and information about certain weapons systems.

But it seems to me that calls to leak specific documents, even aimed at the public at large, would still be covered by the solicitation exception, rather than being mere abstract advocacy—just as calls to kill particular people or bomb particular buildings would be punishable solicitation, even if general abstract advocacy of revolutionary violence isn't.

This having been said, I suspect that many a reporter has urged a source to leak particular documents, whether they are national defense secrets, trade secrets, confidential documents that are covered under some private nondisclosure agreement, or something like that. Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn't itself criminal but just civilly actionable). Perhaps reporters shouldn't be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

3. But the most striking counts are counts 15-17, which allege, in relevant part:

From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

Nothing in this count turns on Assange's having helped or solicited Manning's leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn't have to find any complicity by Assange in the initial leak.

And reporters do routinely publish information that they know was illegally leaked by someone. In Bartnicki v. Vopper (2001), the Court made clear that third parties are generally free to publish material that they know was illegally gathered (there, by an illegal interception of a cell phone call), at least so long as the publishers weren't themselves involved in the illegal gathering (and so long as the speech is on matters of public concern). That would presumably apply to other kinds of improperly gathered or leaked information as well.

But the government's theory appears to be that this doesn't apply to illegal leaks of national defense information. (The Pentagon Papers case (1971) didn't resolve the issue, because it just overturned injunctions against publishing leaked information; a majority of the Justices left open the door to possible criminal prosecutions for such publication.) And indeed in U.S. v. Rosen (E.D. Va. 2006), the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists:

[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.

This position cannot be sustained. Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The charges were eventually dropped, though, so the case didn't yield an appellate precedent. The Assange case, I expect, will be much more likely to go up on appeal, and to draw broad public attention. It might thus affect prosecutorial and media practices much more than Rosen did.

Whether and when the First Amendment bars this sort of third-party, arms-length publication of national defense information is a complicated question. (Compare the statement in Near v. Minnesota (1931) that "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops," and note that the government argues that the publications jeopardized specific people identified in some of the documents as having helped America and its allies—but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.) Here, though, I just want to explain what is at stake in the new Assange indictment, which is much broader than the old one.

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Today's decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention's nominees: "Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge." The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge.

Justice Gonzalez dissented:

The State's authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector's discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concerns. He opined, "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices."

There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

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